{"id":252599,"date":"2006-08-29T00:00:00","date_gmt":"2006-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/corporation-of-kochi-vs-elamkulam-village-co-operative-on-29-august-2006"},"modified":"2017-02-05T10:36:55","modified_gmt":"2017-02-05T05:06:55","slug":"corporation-of-kochi-vs-elamkulam-village-co-operative-on-29-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/corporation-of-kochi-vs-elamkulam-village-co-operative-on-29-august-2006","title":{"rendered":"Corporation Of Kochi vs Elamkulam Village Co-Operative … on 29 August, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Corporation Of Kochi vs Elamkulam Village Co-Operative … on 29 August, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4982 of 2000\n\nPETITIONER:\nCorporation of Kochi\n\nRESPONDENT:\nElamkulam Village Co-operative Society Ltd. and Anr.\n\nDATE OF JUDGMENT: 29\/08\/2006\n\nBENCH:\nARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
With
\nCIVIL APPEAL No. 4983 of 2000
\nand
\nCIVIL APPEAL No. 3212 of  2006 <\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tThese appeals relate to a common order passed by a
\nDivision Bench of the Kerala High Court.  While CA Nos. 4982
\nof 2000 and 4983 of 2000 have been filed by the Corporation
\nof Kochi (hereinafter referred to as the ‘Corporation’), the other
\nappeal has been filed by Greater Cochin Development
\nAuthority (in short the ‘Development Authority’). By the
\nimpugned judgment the High Court held that the decision of
\nthe Corporation rejecting the application for removal of licence
\nmade by the respondent No.1 (hereinafter referred to as the
\n‘Society’) is not sustainable and the learned Single Judge who
\ndisposed of the writ petition should not have directed an
\nappeal to be filed by the Society.\n<\/p>\n
\tBackground facts in a nutshell are as follows:-\n<\/p>\n
\tThe Society represented by its Secretary is registered
\nunder the Kerala Co-operative Societies Act.\n<\/p>\n
\tOne of the objects of the Society is the conduct of a
\nprivate market at Kadavantha. According to the society it owns
\n29 cents of land in Elamkulam Village facing ‘Sahodaran
\nAyyappan’ road in Ernakulam. The society had constructed 42
\nshop rooms in the property and leased it out to its members
\nand non-members, who had been conducting business of
\ndealing with provisions, vegetables, meat, fish etc.  The Society
\nhad been collecting licence fees from the occupants of the
\nshop rooms.\n<\/p>\n
The private market was being conducted by the Society
\nafter obtaining licence from Corporation, under the Erstwhile
\nKerala Municipal Corporations Act, 1961 (in short the
\n‘Corporation Act<\/a>‘). The licence was being renewed every year
\nand the licence fee was also being paid. The market conducted
\nby the Society is a private market under Section 2(31) of the
\nKerala Municipality Act, 1994 (in short the ‘Act’). Out of the
\nproperty belonging to the Society, an extent of 2.650 cents of
\nland was surrendered to the Corporation for the purpose of
\nwidening the ‘Sahodaran Ayyappan’ road, free of cost after
\ndemolishing the adjacent shop rooms. According to the Society
\nby over sight, it failed to apply for the renewal of the licence for
\nthe period 1997-98. By letter dated 23.8.1997 the Corporation
\ndirected the Society to stop the functioning of the market for
\nnon-payment of licence fee. On receipt of this the Society filed
\na representation to condone the delay in remitting the licence
\nfee and permitting it to pay the licence fee for the period 1997-\n<\/p>\n
98. But the Corporation issued notice calling upon the Society
\nto show cause as to why the business shall not be closed,
\nsince the private market is unauthorised. This was challenged
\nby some of the occupants of the shop rooms, which resulted in
\nthe filing of O.P.No.1663\/98 and W.A.No.601\/98.
\nSubsequently, the Joint Registrar of Cooperative Societies
\npassed an order dated 26.6.1998 directing the Society to take
\nurgent steps to continue the market owned by the Society.
\nThereafter, the Society passed a resolution dated 1.8.1998 to
\nopen the market and to pay the requisite licence fee for the
\nprivate market for the periods 1997-98 and 1998-99. The
\nSociety with a covering letter dated 4.8.1998, forwarded a
\ncheuqe for Rs.5,100\/- being the licence fee for the said periods
\nand submitted applications in the prescribed form for licence.\n<\/p>\n
The Corporation by order dated 6.8.1998 rejected the
\napplication, returned the cheque. The said order was
\nchallenged in OP. No.15638\/98 by some of the members of the
\nSociety. The Society filed O.P.No.17365\/98 challenging
\nrejection of the application. The above Original Petitions were
\ndismissed by judgment dated 13.10.1998. Thereafter, the
\nSociety filed W.A. No.225\/98 and W.A. No.226\/98 against the
\njudgments in O.P. No.17635\/98 and O.P. No.15638\/98 Both
\nthe Writ Appeals were heard together and disposed of by
\njudgment dated 1712.1998. By said judgment, High Court
\ndirected the Corporation to pass fresh order in accordance
\nwith the directions contained in the judgment. The
\nCorporation again considered the application and rejected the
\nsame by order dated 20.1.1999. Challenging the same O.P.
\nNo.3433\/99 was filed.\n<\/p>\n
The main ground taken against the order was that it is
\nthat is not in accordance with the directions contained in
\nearlier judgment. The Society contended that the holding of a
\nprivate market is a right which it can exercise and the
\nCorporation can only impose restrictions or regulations
\nregarding the conduct of the same. It was further contended
\nthat the matters which were not relevant have been taken into
\nconsideration by the Corporation in rejecting the application
\nfiled by it. As a matter of fact, there was default in the
\npayment of licence fee only for one year and as soon as the
\nSociety came to know of the non-renewal of the licence,
\napplication was filed immediately. But that application was
\nnot considered by the Corporation. There was no rule that an
\napplication for renewal cannot be submitted after the
\nprescribed time. The only inhibition is that a market cannot be
\nconducted without licence. The Corporation itself has allowed
\nthree persons to conduct stalls in the market. The ground of
\nunhygienic conditions mentioned in order is not correct. The
\nmarket has been existing for the last so many years. As
\ndirected in earlier judgment, this could have been rectified by
\nmaking suitable directions to the licensee to remove the
\nunhygienic conditions. Similarly, it was contended that the
\nground of traffic congestion s invented only for the purpose of
\ndenying licence to the Society. As a matter of fact, the Society
\nitself has surrendered free of cost an extent of nearly 2= cents
\nof land for widening the ‘Sahodaran Ayyappan’ road. Further,
\nthe Society is prepared to abide by any conditions imposed for
\nthe regulation of traffic and easing of traffic congestion
\nbecause of the existence of the market. The existence of the
\nmarket very close in the Kadavanthra junction is not a ground
\nto refuse the licence.\n<\/p>\n
On behalf of the Corporation, a counter-affidavit was
\nfiled. According to it, an alternate remedy is available to the
\nSociety under Section 509(l)(b)<\/a> of the Act. It was further stated
\nthat only a few of the stall holders have taken the licence from
\nthe Corporation. The market is not being kept in a good
\nhygienic condition. There was no provision for waste disposal
\nand the market was being run in a most unhygienic condition.
\nThe Corporation relied on the counter filed in O.P. No.1663\/98
\nto show that the market is very congested and unhygienic. It
\nwas further stated that the market is abutting the ‘Sahodaran
\nAyyappan’ road, a very busy road. The market does not have
\nany parking space. Society did not apply for the renewal of the
\nlicence from 1995-96 onwards. There was no application for
\nrenewal. As a matter of fact, an earlier application was not
\npursued. Reference was made to the Original Petition filed by
\ncertain stall holders.\n<\/p>\n
\tLearned Single Judge who heard the writ petition did not
\ngo into the merits of rival contentions and held that the issues
\nconcerned can be gone into more effectively if an appeal is filed
\nunder Section 509(1)<\/a> of the Act.  It was noted that disputed
\nquestions of facts were involved. Therefore, it will not be
\nproper to decide the issue in the writ petition.  It was further
\nindicated that the question as to whether the Secretary of the
\nCorporation had acted in accordance with directions issued by
\nthe High Court in the earlier judgment can be considered by
\nthe Appellate Authority.  The relevant portion of the order
\nreads as follows:\n<\/p>\n
\t“I do not propose to go into the merits of
\nthe rival contentions in this proceedings as
\naccording to me, all these matters can be
\nconsidered in an appeal filed under Section
\n509(1)(b)<\/a> of the Act.  I also find that certain
\ndisputed questions of fact are also involved in
\nthe matter.  I am sure that if the petitioner
\nfiles an appeal against the impugned order, the
\nappellate authority will consider the matter
\nwith all seriousness. The question as to
\nwhether the Secretary while passing Ext. P10
\norder has flouted the directions issued in Ext.
\nP9 judgment will also be considered by the
\nappellate authority in the appeal.”\n<\/p>\n
\tAn appeal was filed by respondent no.1-society before the
\nHigh Court.  Primary stand taken was that respondent no.1-
\ncorporation had not kept in view the earlier judgment passed
\nin the Writ Appeal Nos.2225\/98 and 2226\/98 dated
\n17.12.1998 and, therefore, the learned Single Judge should
\nnot have directed the writ-petitioner to file an appeal and
\nshould have decided the matter.  The present appellant took
\nthe stand that since alternative remedy is available the writ-
\npetitioners should have availed that remedy and should not
\nhave filed a writ petition particularly when the disputed
\nquestions of facts are involved.  The High Court accepted the
\nposition that where there is alternative remedy the High Court
\nshould not normally exercise its jurisdiction.  However, it felt
\nthat because the order which was impugned in the writ
\npetition was running counter to the directions contained in the
\nearlier judgment, a writ petition was to be entertained.  High
\nCourt was of the further view that merely because there was
\ndelay in seeking renewal of the licence, that cannot be a
\nground to refuse the licence. It was of the view that there was
\nno specific period provided for making an application though
\nSection 460(1)<\/a> of the Act states that no person shall open a
\nnew private market or continue to keep open a private market
\nexcept on a licence from the Municipality. Application for a
\nlicence or renewal application has to be made in terms of sub-
\nsection (2) of Section 460<\/a> not less than six weeks before the
\nexpiry of the period for which the licence has been granted and
\nin the case of a new market, six weeks before the date on
\nwhich the market is proposed to be opened.  The High Court
\nfelt even though Section 460<\/a> required renewal within six
\nweeks before the expiry of the licence, the Municipality has the
\npower to renew the licence even if there is a belated
\napplication. For coming to the conclusion the High Court felt
\nthat it is one thing to say that the market cannot be run at
\nany time without appropriate licence or on the licence being
\ncancelled.  It was accepted that a licensee has to apply for
\nrenewal within stipulated time and the Municipality has power
\nto close down the market.  It was, however, held that when an
\norder has been passed to close down, it is not that licencee
\ncannot apply for renewal.  It was further, held that though the
\nnew market was opened by the Development Authority, and
\nsome of the shopkeepers had already occupied some shops
\ncannot be a ground to refuse the renewal.  It was noticed that
\nmunicipality had allowed three persons to function in the
\nmarket. It was held that the directions in the earlier judgment
\nwere not considered. Therefore, it was held that the matter
\nwas to be re-considered.\n<\/p>\n
\tIn support of the appeals, learned counsel for the
\nappellants submitted that admittedly the licence was not
\nrenewed and, therefore, the market was being operated
\nwithout proper licence.  That is why direction was given to
\nstop activities.  It is to be noted that respondent no.1-society
\ndid not want to renew its licence. It has categorically stated by
\nway of an affidavit that there was intention to continue
\nactivities. The shopkeepers had filed a writ petition for
\ndirection to the Society to ask for renewal of the licence.  The
\nwrit petition was dismissed. Similar was the fate of writ
\nappeal.  Thereafter the Society had filed writ petition. On the
\nfirst round, the only ground taken was that order was passed
\nwithout notice.  Therefore, direction was given to give an
\nopportunity and, thereafter decide the matter.  That was done.
\nThe applications for renewal relating to two periods i.e. years
\n1997-98 and 1988-89 were considered and fresh order was
\npassed.  It is not the case of the respondent no.1-Society that
\nit intended to continue business and there was some
\nunintentional delay. As a matter of fact, when the shopkeepers
\nhad filed the writ petition, at that time the respondent no.1-
\nSociety did not take stand that it wanted renewal of the
\nlicence.  In fact, the application was filed after the dismissal of
\nthe writ appeal.\n<\/p>\n
Learned counsel for respondent no.1 submitted that the
\nHigh Court has rightly taken note of the fact that there was no
\nbar on making a belated application for renewal.\n<\/p>\n
Section 460<\/a> deals with “License for private markets”.  The
\nsame reads as follows:\n<\/p>\n
“460. Licence for private markets. (1) No
\nperson shall open a new private market or
\ncontinue to keep open a private market except
\non a licence from the Municipality.\n<\/p>\n
(2) Application for a licence under sub-section
\n(1) shall he made by the owner of the place in
\nrespect of which the licence is sought to be
\nrenewed, not less than six weeks before the
\nexpiry of the period for which the licence has
\nbeen granted and in the case of a new market,
\nsix weeks before the date on which the market
\nis proposed to he opened.\n<\/p>\n
(3) The Municipality shall, as regards private
\nmarkets already established and may, at its
\ndirection as regards new private markets grant
\nthe licence applied for subject to such
\nregulations as to supervision and inspection
\nand to such conditions as to sanitation,
\ndrainage, water supply, width of paths and
\nways, weights and measures to be used, and
\nrents and fees to be charged in such market as
\nit may think proper or it may, for reasons to be
\nrecorded in writing, refuse to grant any such
\nlicence for any new private market. The
\nMunicipality may, however at any time, modify
\nthe conditions of a licence to take effect from
\nany specified date or suspend or cancel any
\nlicence for breach of any conditions thereof.
\n(4) Where a licence is granted, refused,
\nmodified, suspended or cancelled under this
\nsection, the Municipality shall cause a notice
\nof such grant, refusal, modification,
\nsuspension or cancellation in English and the
\nlanguage of the locality to be pasted in some
\nconspicuous place at or near the entrance to
\nthe place in respect of which the licence was
\nsought or had been obtained.\n<\/p>\n
(5) Every licence granted under this section
\nshall expire at the end of the year in which it is
\ngranted,
\n[Explanation. For the purpose of his section
\nprivate market includes also a shopping
\ncomplex having more than six shop rooms.]<\/p>\n
Section 462<\/a> in definite terms provides that no person
\nshall sell or expose for sale any animal or article in any
\nunlicensed private market.\n<\/p>\n
The High Court itself has noted that the application for
\nrenewal has to be filed within the stipulated period. It,
\nhowever, was of the view that there is no bar in making an
\napplication beyond that time.  The view that application can be
\nmade at any time is not correct, because application for
\nrenewal was filed after the expiry of the period. The respondent
\nno.1-Society itself had indicated that it had no intention to
\ncarry out the activities. Further, we find that every
\nobservation\/direction given by the High Court in the earlier
\njudgment had been duly and elaborately discussed and
\nthereafter the order rejecting applications filed was passed.
\nThe High Court came to an abrupt conclusion that the
\ndirections given in the earlier writ appeal were not taken note
\nof.  Unfortunately, the High Court has not indicated as to
\nwhich of the directions was not taken note of.  As a matter of
\nfact, a bare reading of the order which was passed on
\n20.1.1999 shows that all relevant aspects were elaborately
\ndealt with.  Each of the points was considered and conclusions
\nwere arrived at. It was specifically noted that the licence
\nissued earlier expired on 31.3.1996 and, therefore, the market
\nwas functioning unauthorisedly w.e.f. 1.4.1996.  There was no
\napplication for renewal made at any time even not belated for
\nthe year 1996-97.  Obviously, the application could not have
\nbeen made for renewal of the licence after the expiry of the
\nperiod which is the case for the period 1997-98.  For the year
\n1998-99 the application was made on 4.8.98 i.e. after the
\nexpiry of the period provided. The question of renewal of
\nlicence retrospectively after the expiry of the period during
\nwhich the society had unauthorisedly carried on activities is
\nnot contemplated in law. Therefore, the impugned judgment of
\nthe Division Bench of the High Court is clearly indefensible,
\nand is set aside. The appeals are allowed but in the
\ncircumstances without any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Corporation Of Kochi vs Elamkulam Village Co-Operative … on 29 August, 2006 Author: A Pasayat Bench: Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4982 of 2000 PETITIONER: Corporation of Kochi RESPONDENT: Elamkulam Village Co-operative Society Ltd. and Anr. DATE OF JUDGMENT: 29\/08\/2006 BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-252599","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCorporation Of Kochi vs Elamkulam Village Co-Operative ... on 29 August, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/corporation-of-kochi-vs-elamkulam-village-co-operative-on-29-august-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Corporation Of Kochi vs Elamkulam Village Co-Operative ... on 29 August, 2006 - 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